Inheritance: A Case of Deprivation and Limitation
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| "Legal Battle Over Inheritance: A Case of Deprivation and Limitation" |
یہ کیس بنیادی طور پر وراثتی جائیداد سے متعلق ہے، جس میں درخواست گزاروں (petitioners) نے دعویٰ کیا کہ ان کی دادیاں (Mst. Shughla اور Mst. Padama) کو 1937 میں وراثت سے غیر قانونی طور پر محروم کر دیا گیا تھا۔
پس منظر:
مدعیان (Hayat Khan & others) کا دعویٰ ہے کہ ان کی دادیاں (Mst. Shughla & Mst. Padama) مرحوم سعد الدین کی قانونی وارث تھیں۔
سعد الدین کی وراثتی زمین کو 1937 اور 1938 میں مختلف منتقلیوں کے ذریعے Sanober اور Ghulab (جو مدعا علیہان کے آباؤ اجداد تھے) کے نام منتقل کر دیا گیا۔
مدعیان کے مطابق، یہ منتقلیاں غیر قانونی تھیں اور ان کی دادیوں کو جان بوجھ کر وراثت سے محروم کیا گیا۔
قانونی نکات:
1. ابتدائی عدالتی کارروائی:
مدعیان نے 1993 میں سول کورٹ میں مقدمہ دائر کیا۔
سول جج، پشاور نے ان کے حق میں فیصلہ دیا اور قرار دیا کہ Mst. Shughla & Mst. Padama کو غیر قانونی طور پر وراثت سے محروم کیا گیا تھا۔
2. اپیل کورٹ:
مدعا علیہان (respondents) نے اپیل دائر کی، جس میں ایڈیشنل ڈسٹرکٹ جج-I، پشاور نے سول کورٹ کا فیصلہ کالعدم قرار دے کر مقدمہ خارج کر دیا۔
اپیل کورٹ نے کہا کہ سعد الدین نے اپنی زندگی میں ہی زمین منتقل کر دی تھی، اس لیے کوئی وراثتی جائیداد نہیں بچی تھی۔
3. ہائی کورٹ میں نظرثانی:
مدعیان نے پشاور ہائی کورٹ میں سول ریویژن دائر کی۔
ہائی کورٹ نے اپیل کورٹ کے فیصلے کو برقرار رکھا اور مقدمہ حدِ مدت (limitation) کی بنیاد پر خارج کر دیا۔
فیصلہ:
عدالت نے قرار دیا کہ وراثتی حق کے لیے فوری قانونی کارروائی ضروری ہوتی ہے۔
چونکہ Mst. Shughla & Mst. Padama نے اپنی زندگی میں اس وراثت کو چیلنج نہیں کیا اور 1993 میں ان کے ورثاء نے کیس دائر کیا، اس لیے یہ کیس وقت کی حد (limitation) میں نہیں آتا تھا۔
1937 سے 1993 کے درمیان 56 سال گزر چکے تھے، اور اس دوران جائیداد کئی بار فروخت یا منتقل ہو چکی تھی، لہٰذا عدالت نے کیس مسترد کر دیا۔
نتیجہ:
یہ کیس ایک اہم قانونی نظیر (precedent) فراہم کرتا ہے کہ وراثت سے محرومی کے دعوے فوری طور پر دائر کرنے ضروری ہیں، ورنہ قانونی چارہ جوئی کا حق ختم ہو جاتا ہے۔ اس فیصلے میں سپریم کورٹ کے کئی فیصلوں کا حوالہ دیا گیا، جن میں "غلام علی کیس" اور "لعل خان کیس" شامل ہیں، جو وراثتی معاملات میں حدِ مدت (limitation) کے اصول کی وضاحت کرتے ہیںں!
Must read judgement
JUDGMENT SHEET
PESHAWAR HIGH COURT, PESHAWAR
JUDICIAL DEPARTMENT
Civil Revision No.1217-P/2005
Hayat Khan & others V/s Gul Rehman & others.
Date of hearing 30.11.2020
Mr. Abdul Sattar Khan, Advocate, for the petitioners.
M/s. Zia-Ur-Rehman, Ismail Khan Khalil, Muhammad
Shoaib Khan, Iltaf Ahamd, Saad-ul-Mabood, Jawad Khan,
Nasir Ahmad & Adnan Khattak, Advocates, for the
respondents.
JUDGMENT
SYED ARSHAD ALI, J. This Civil Revision is directed
against the judgment/decree dated 01.08.2005 of learned
Additional District Judge-I, Peshawar whereby appeal of the
respondents/defendants against the judgment/decree dated
03.11.2004 of learned Civil Judge, Peshawar was allowed and
suit of the petitioners/plaintiffs was dismissed.
2.
The facts relating to this case are simple and straight
forward. The plaintiffs/petitioners who are the legal heirs of
Mst. Shughla & Mst. Padama daughters of Mehr Ali who was
the son of Saad-ud-Din through the suit which they filed on
13.04.1993 before the Civil Court, challenged the transfer of
the suit property from Saad-ud-Din to defendants No.1 to 13
through different transactions which were concluded/executed
in 1937 and 1938. It is the claim of the present petitioners that 2
Mst. Shughla & Mst. Padama were illegally deprived of legacy
of Saad-ud-Din in active connivance of Sanober & Ghulab
who were the predecessor of the defendants No.1 to 13. In
order to comprehend the relations between the parties, it is
appropriate to refer to the pedigree tables relied upon by the
Trial Court:-
3.
As pointed out by the learned Trial Court that the
relationship between the parties as discern from the pedigree
table are undisputed except the facts that Ghulab & Sanober
were not the direct descendent of Ghulam Khan but were the
descendent of Musafar son of Ghulam Khan, therefore, the
name of Musafar is missing from the pedigree table, however,
it has no bearing on the case because the property left behind
by Musafar Khan was passed on to Sanober and Ghulab, the
predecessor of defendants No.1 to 13. Furthermore, it is also
evident from the record that although the defendants disputes
the parentage of Mst. Shughla and Mst. Padama, however, it
appears from record that Mehr Din, the original predecessor of
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both the parties were survived by Ghulam Khan and Ghazi
Khan. The defendants No.1 to 13 are the descendant of
Ghulam Khan whereas the present petitioners claim their
legacy from Ghazi Khan the other son of Mehr Din. Ghazi
Khan had three sons namely Abdul Khaliq, Ghani & Saad-udDin. Abdul Khaliq died issueless whereas Ghani was survived
by Mst. Gul Firosha & Mst. Dilbaro both of them died
issueless.
4.
Whereas, during the life time of Saad-ud-Din; his only
son Mehr Ali had died and the said Mehr Ali had two
daughters Mst. Shughla & Mst. Padama who are the
predecessor in interest of the plaintiff/petitioner.
5.
The bone of contention between the parties is the
inheritance of Saad-ud-Din. His inheritance mutation No.774
dated 16.08.1937 is available on the record according to which
the legacy of Saad-ud-Din was transferred in favour of
Sanober etc. The petitioner has placed on record the
application of Mst. Gul Firosha daughter of Ghani Khan and
niece of Saad-ud-Din for correction of the said inheritance
mutation to the City Magistrate. The then City Magistrate
obtained the comments of Naib Tehsildar and after receipt of
the comments, wherein it was recommended that true legal heir
of the Saad-ud-Din was Mst. Gul Firosha, therefore, he
accepted the said application and ordered for correction of the
said inheritance mutation, thereby reverting the property; left
behind by Saad-ud-Din; from Sanober etc to Mst. Gul Firosha.
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This order was followed by a proper mutation dated
23.05.1938 Ex.APW-3/1. Later, Mst. Gul Firosha through a
registered deed dated 19.04.1939 exhibited as Ex.DW-1/1 had
gifted the property to Sanober son of Muzaffar the predecessor
of the defendants No.1 to 13.
6.
Thus, it discerns from record that in the entire episode
the true legal heirs i.e. Mst. Padama and Mst. Shughla, the
predecessor in interest were deprived of their legal and shari
share in the inheritance of Saadu-ud-Din. The respondents
could not controvert their legal position . Keeping in view this
fact the learned Trial Court had decreed the suit whereas the
learned Appeal Court has set aside the decree on altogether
alien consideration. The learned Appeal Court in its impugned
judgment has held that Saad-ud-Din during the life time had
transferred the property more than his share in Khana Kasht,
therefore, he had left behind no legacy, however, these
findings are not supported by any record. The Goshwara
Malkiat of Saad-ud-Din, available on the record, according to
which, Saad-ud-Din had transferred only land measuring 28
Kanal 3 Marla exhibit as Ex.PW-1/16 out of his total property
and according to the said Goshwara he was still recorded as
owner of considerable land measuring almost 46/47 Kanal.
Even otherwise, these assertions are not supported by record
because pursuant to inheritance mutation reviewed by City
District Magistrate, his property has devolved upon Mst. Gul
Faroosha his niece, which was later transferred in the name of
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the predecessor of the defendants through registered deed
stated above.
7.
In my humble submission, the main issue in this case is
the issue of limitation. The predecessor of the respondents had
transferred all his property to various persons through different
mutation the detail whereof is provided and Ex.PW-3/2 and
thus when nothing was left in his legacy, the present plaintiffs
who are the legal heirs of Mst. Shughla & Mst. Padama had
filed the suit on 13.04.1993. It is pertinent to note that neither
Mst. Padama nor Mst. Shughla nor Mst. Gul Firosha had
challenged the said mutation during their life time. In this
regard the learned counsel appearing on behalf of the
plaintiffs/petitioners has argued that since it is a matter of
inheritance, therefore, the question of limitation does not arise.
8.
Let us have the benefit from the law enumerated by the
Apex Court, in the matter where the claim of a deprived legal
heir in the legacy of the predecessor but raised at belated stage,
was dealt with.
9.
In the case of “Ghulam Ali [PLD 1990 SC 1]”, the
Apex Court while dealing with a case, wherein the daughter of
common predecessor were excluded from the legacy of her
predecessor by the brother in the year 1963, when
subsequently she had challenged the said mutation depriving
her from the legacy of her forefather, the Apex Court has
maintained that in such a situation the possession of brother,
thus would be taken to be the possession of their sister unless
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there is an express repudiation of the claim of the sister by the
brothers, therefore, the suit was held to be in time. This view
was also reaffirmed in the case of “Muhammad Boota V/S
Allah Ditta [1998 SCMR 2764]” by the Apex Court. The
Apex Court remained consistent in this regard as evident from
the case law reported in the judgments titled “Zulfiqar Ali V/S
Ghulam Rasool [2004 SMR 513], Muhammad Raffique V/S
Muhammad Ali [2004 SCMR 704], Mst. Fatima Bibi V/S
Altaf Ahmad [2009 SCMR 693] & Mst. Gohar Khanum V/S
Mst. Jameela Jan [2014 SCMR 801]”.
10. In the case of “Lal Khan V/S Muhammad Yousaf [PLD
2011 SCMR 657]” the Apex Court had set aside the
concurrent findings of three Courts and dismissed the suit filed
on 13.05.1970 being barred by time where the plaintiffs had
challenged the inheritance mutation dated 13.02.1947.
11. Later, the Apex Court in the case of “Mst. Grana [PLD
2014 SC 167]” while relying upon the ratio of Lal Khan case
and distinguishing the law laid down by the Apex Court in
Ghulam Ali’s case has laid the following principle relating to
the acquiescence of a legal heirs when he or she does not
challenge the inheritance mutation of the predecessor in time.
Para 7-A of the judgment is reproduced wherein this issue has
been elaborately answered.
“7-A The plaintiff had assailed the
registered sale-deed dated 08.06.1916 and
the sale mutation No.1273 dated
23.12.1917. She had also questioned
inheritance mutations No.281 dated
05.12.1930, 2089 dated 1.09.1949 and gift
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mutations of 11.11.1959 and further
mutations made from time to time attested
on 18.01.1956, 09.12.1964, 12.12.1981,
31.01.1984 & 30.07.1987 and further all
subsequent sale and gift mutations. The
challenge was thrown in the year 1991 when
she was more than 80 years old; as
according to the evidence she was 6/7 years
old when her father had died somewhere in
the year 1911/12. Upon her father’s death
the entire property was inherited by her as
limited owner, which, upon her marriage in
the year 1930, she had to give up in favour
of her step-sister, Mst. Bibi, born out of her
mother’s wedlock with one, Rasool. Since
then she had remained out of possession. It
cannot be said that she was unaware as to
how the property was handled there-after
and of her rights therein. Rather her
awareness is demonstrated by the order of
the Collector, Mardan, dated 15.04.1942
where she was marked personally present.
In the appeal before the Collector she had
questioned the permanent transfer by Mst.
Bibi of certain property alleging that the
respondent was a limited owner. However,
she had neither then or ever questioned the
sale deed of the year 1916 till filing of the
suit in the year, 1991, being well aware of
such transfer. Again, as the above order of
the Collector shows that the plaintiff was
conscious and aware that a limited owner
was not empowered to transfer permanently
property inherited by him or her, she did not
question the gift mutation by Mst. Bibi in
favour of the latter’s mother, Mst. Habib
Khanum, also the plaintiff’s mother, in the
year 1945. It may also be noted that by then
the North-West Frontier Province Muslim
Personal Law (Shariat) Application Act,
1935 had come into force and the plaintiff
could have asserted her right of inheritance.
While the property was further sold and
resold, constructed and reconstructed, the
plaintiff took no action to annul or prevent
such transfers. When she filed the suit there
were as many as 251 transferees of the
property. The conduct of the plaintiff clearly
demonstrated acquiescence in all the
impugned transfers of the property which
amounting to waiver of her right. The
transferees were, on account of the plaintiffs
inaction, led to believe that the transferors
had valid title in the suit property. The
plaintiff had died during early stages of the
litigation and has now represented by her
legal heirs. The impugned concurrent
findings of the two Courts on the above
questions therefore do not call for any
interference”.
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12. In the case of “Mehmood Shah reported as [2015
SCMR 869]” the Apex Court while dealing with the issue of
limitation has also considered the law laid down by the Apex
Court in the earlier judgments. It is held in this judgment that
succession to the property by the legal heirs to the property of
their propositus becomes a fait accomply immediately after his
demise and thus does not need the intervention of any of the
functionally of the Revenue Department and remain as such
irrespective of what Patwari/Girdawar & Revenue Official
enter in mutation sanctioned in this behalf. However, in this
case the judgment of the Apex Court in the case of Lal Khan
and Muhammad Rustom were distinguished on the reason that
the descendant of propositus did not challenge their exclusion
from inheritance during their life time. I have also considered
the law laid down by the Apex Court in the subsequent
judgments reported as “Khan Muhammad V/S Mst. Khatoon
Bibi [2017 SCMR 1476], Asal Janan & others V/S Zareef
Khan & others [2020 SCMR 668] & Shabla & others V/S
Ms. Jahan Afroz Khilat & others [2020 SCMR 352]”.
13. After perusing the aforesaid judgments of the Apex
Court I have reached at the conclusion that when a legal heirs
is deprived of his/her right of inheritance and he/she remains
alive for a considerable period and does not challenge his/her
deprivation from the legacy of the predecessor, then at later
stage when the legacy changes many hand, the further legal
heirs have no locus-standi to challenge the said inheritance
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mutation which remained unchallenged during the life time of
their predecessor.
14. In the context of the present case, the predecessor of the
present petitioners were deprived of their legacy in the year
1937, therefore, suit filed by the present petitioners in the year
1993 when the entire property had changed so many hands is
not within the period of limitation.
15. Resultantly, this petition is dismissed in the above terms.
Announced
30.11.2020
JUDGE